Central Information Commission
Ms.Rachna Dhingra vs Ministry Of Health And Family Welfare on 11 March, 2013
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
File No. CIC/LS/A/2013/000113
(Ms. Rachna Dhinga vs. Bhopal Memorial Hospital and Research Centre, Bopal)
Dated 11.3.2013
This matter was earlier heard on 1.2.2013. The proceedings
of the day are extracted below:-
"File No: CIC/LS/A/2013/000113
Appellant : Ms Rachna Dhingra
Public Authority : Bhopal Memorial Hospital and Research ,
Centre, Bhopal
Date of hearing : 01.02.2013
Date of Decision : 01.02.2013
FACTS
Heard today dated 01.02.2013. Appellant not present but she has spoken to me on telephone. The Hospital is represented by Shri Mazhar Ullah, Public Relations Officer.
2. The matter, in short, is that thousands of people died or suffered injuries in Bhopal gas leak disaster on 2/3 December, 1984. Under the orders of the Supreme Court of India, a Trust was set-up to run the Hospital to provide free treatment to the victims of the disaster and the people of Bhopal. The said Hospital has now been taken over by the Government of India on 19.07.2010 and is known as Bhopal Memorial Hospital and Research Centre, Bhopal (BMHRC). It is the appellant say that a number of drugs made by the foreign companies were tried on the victims of the disaster and others. In this connection, vide RTI application dated 09.02.2011 the appellant had sought the information about the drug trials etc. As the RTI application was not legible, I had spoken to the appellant on telephone. During the telephonic conversation, the appellant informed the Commission that she had sought the following information :-
(i) the identity of the persons on whom different drugs trials were conducted during 2000 to 2011;
(ii) the amount of funds received for different trials by the Bhopal Memorial Hospital (BMH) during 2000 to 2011;
(iii) the names of the Companies, names of the drug and the number of patients involved in different trials;
(iv) the number of patients who died during the drugs trails; and
(v) the Minutes of the Institutional Review Board which approved the conduct of drugs trials.
3. Shri Mazhar submits that part information has already been provided to the appellant as also to the Commission. As regards para (i), he submits that the identity of the individuals on whom the drugs were tried can not be disclosed as the agreement between the patient, Principal Investigator and the Hospital contains a 'confidentiality' clause. Besides, he needs some time to collect and collate the requisite information. In the facts and circumstances of the case, following interim order is passed :-
(a) As regards para (i) above, the CPIO may issue notice to any 25 patients at random on whom drugs were tried u/s 11(1) of the RTI Act and obtain their consent for disclosure of their names and take a decision s per law for disclosure/non disclosure of their identity.
(b) As regards paras (ii), (iii), (iv) and (v) above, Shri Mazhar would submit para wise response before the Commission on the next date of hearing for an appropriate order.
5. The matter is adjourned to 11.03.2013 at 11.30 hrs. Both the AA and the CPIO would appear before the Commission on this date."
2. As scheduled, the matter is further heard today dated 11.3.2013. Appellant not present. BMHRC is represented by Shri Mazhar Ullah, PIO and Shri Atul Jain, Appellate Authority. The above named officers submit a written representation dated 11.3.2012 which is taken on record. It would be pertinent to extract this representation:-
"In response to the direction of the Commission on Feb, 1, 2012 we would like to submit as follows:-
1) The information sought by the Commission pertains to the period of Bhopal Memorial Hospital Trust which was running the Bhopal Memorial Hospital and Research Centre. The Trust was an autonomous body which was under the supervision of Hon'ble Supreme Court of India. The Trust or BMHRC were not getting any grants either from the State Government or the Central Government, hence it did not fall under the purview of RTI.
However, the Trust has been dissolved by the Supreme Court of India on July 19, 2010 and was taken over by the Government of India. Since then new rules, regulations and policies as per the government came into practice including setting up of RTI Cell.
2) The drug trials at BMHRC which were conducted during the period of the Trust from 2004 to 2008 had been audited and investigated by the Drug Controller General of India and they have not passed any strictures either against BMHRC or the Principal Investigator. The Madhya Pradesh Government had also conducted a detailed enquiry. Before the investigations, the M P Government had put advertisements in local papers three times, held several camps and put posters in all the gas rahat hospitals and gas hit areas asking such persons to depose before the committee.
Moreover all the drug trials in the country are being looked at by Supreme Court of India.
We would like to once again request the Commission that the matter is highly sensitive and the identity of the patients cannot be disclosed under section 8 (j) of Right to Information Act, hence the application of Ms. Rachna Dhingra be dismissed."
3. During the hearing, the above named officers submit that BMHRC was set up in the year 2000. Neither the Central Government nor the State Government funded this Hospital. It was funded out of the sale proceeds of the shares of the erstwhile Union Carbide Corporation. It is only in July, 2010, that the Central Government took over the Hospital and started funding it. It is also their contention that the appellant is seeking information for the period 2000 to 2010 when the Hospital was not funded by the Central Government or the State Government and, therefore, it cannot be said to be public authority u/s 2 (h) of the RTI Act. Their further contention is that the drug trials were conducted on private individuals and disclosure of identity of these individuals would compromise their privacy and, therefore, this information is not disclosable u/s 8 (1) (j) of the RTI Act. On a query from the Commission, Shri Mazhar Ullah submits that he did not issue notices u/s 11 (1) to any of the individuals on whom drug trials were conducted as per advice given to him by Dr. Subodh Varshney and Dr. S. K. Trivedi, both Principal Investigators. He amplifies that the Principal Investigators rendered him the above advice primarily for the reason that there were confidentiality agreements between the Principal Investigators and the patients.
4. I also spoke to the appellant on telephone. It is her contention that the Union Carbide Corporation did not provide money for the setting-up of the Hospital as a matter of charity. In fact, the shares of Union Carbide Corporation were sold off under the orders of the Supreme Court of India and the Hospital was set-up out of the sale proceeds of these shares. It is also her contention that the Government of Madhya Pradesh had allotted 84 acres of land for the setting-up of the Hospital and, therefore, the Hospital can be said to be substantially financed by the State Government and, thus, is liable to be declared public authority u/s 2 (h) of the Act.
5. To this, Shri Mazhar Ullah would respond that even though the Hospital has been set-up on the land given by the Government of Madhya Pradesh, technically speaking, the land stands in the name of Bhopal Tragedy Relief and Rehabilitation Department and, therefore, inference of the Hospital being substantially financed by the Madhya Pradesh Government cannot be drawn
6. The matter in hand raises the following two issues:-
(i) Whether BMHRC is a public authority u/s 2 (h) of the RTI Act; &
(ii) If yes, whether the information requested for by the appellant is disclosable to the appellant.
7. I will take these issues one by one. The first issue is whether BMHRC is a public authority? In letter dated 7.3.2011, the PRO of BMHRC had taken the stand that BMHRC was not covered u/s 2 (h) of the RTI Act until it was taken over by the Central Government under the directions dated 19th July, 2010, of the Supreme Court of India. Shri Mazhar Ullah has taken the same stand in his representation dated 11.3.2013 filed before this Commission. However, it is incontrovertible that the Government of Madhya Pradesh allotted a huge chunk of land for setting-up this Hospital. Besides, the Central government took over the management and control of he said Hospital under the directions dated 19.7.2010 of the Supreme Court of India. In view of this, the Hospital can be held to be public authority u/s 2 (h) of the RTI Act.
9. Now I come to the second issue asto the disclosability of the requested information. Much emphasis has been laid by Shri Mazhar Ullah on the fact that there were confidentiality agreements between the Investigators and the patients. It is pertinent to mention that being conscious of this fact, I had directed Shri Mazaar Ullah to issue notices to any 25 patients at random on whom drugs were tested during the relevant period u/s 11 (1) of the RTI Act and take a view in the matter afresh. In fact, I had adjourned the matter for a month for enabling Shri Mazhar Ullah to complete this exercise but, to my surprise, Shri Mazhar Ullah has not carried out this exercise for reasons best know to him. His contention of confidentiality agreements being sacrosanct cannot be accepted for the simple reason that the confidentiality agreements were between the Investigators and the patients and if he had followed the Commission's directions and issued notices to the patients u/s 11 (1), the views of the patients would have been known to him. The confidentiality agreements have sanctity only when both sides insist on confidentiality. It cannot be a one sided affair.
10. There is yet another reason why I am not inclined to accept Shri Mazhar Ullah's submission. As per proviso appended to section 11 (1) "disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party". The opinion of the patients regarding disclosure of information has not been solicited by Shri Mazahar Ullah despite clear directions of this Commission. Even if the patients do not agree to the disclosure of the requested information, it is still open to this Commission to order disclosure of information in the larger public interest. Given the fact that a number of drugs manufactured by foreign / Indian companies were tried on these poor, helpless victims of the gas tragedy, I am of the opinion it would be in the larger public interest to disclose the requested information. In short, I hold that BMHRC is a public authority u/s 2 (h) and it is in the larger public interest to disclose the requested information.
11. Now I come to the modus of disclosure of requested information. Disclosure can be made in two ways:- (a) by providing copies of the relevant documents; or (b) by giving inspection of the relevant records to the information seeker. The matter in hand has certain sensitivities. I am, therefore, not inclined to order provisioning of copies of records to the appellant straightaway. In my opinion, it would be expedient to first give inspection of records to the appellant, particularly when the information appears to be huge and voluminous in nature with permission to take notes there-from on a mutually convenient date and time. This is in line with the order dated 28.7.2010 passed by a Division Bench of the Bombay High Court in Writ Petition No. 3871 of 2010. The appellant, however, will have the liberty to subsequently move this Commission, again, if she wishes to have copies of certain specific documents.
12. The CPIO will comply with this order in 06 weeks.
Sd/-
(M.L. Sharma) Central Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(K L Das) Dy. Registrar Address of parties
1. The CPIO Bhopal Memorial Hospital Trust, Bhopal Memorial Hospital & Research Centre, Rajsen Bye Pass Road, Bhopal - 38
2. Ms. Rachna Dhingra 44 SantKanwar Ram Nagar, Berasia Road, Bhopal - 462001